The Senate last week passed a resolution asking President Goodluck Jonathan to set up the National Council on Public Procurement to stop what Senate President David Mark described as “sheer illegality” in government contract awards.
While their position is understandable since the Public Procurement Act 2007 remains the subsisting law, I believe it is important for all the critical stakeholders to adopt a more serious approach to resolving an issue that impinges on transparency and accountability in our country.
The story began on June 4, 2007, when the late President Umaru Musa Yar'Adua assented to the Public Procurement Act among other Bills passed by the National Assembly on May 31, 2007, (two days after President Obasanjo left office) with only a week to the expiration of their own tenure. A month later, Eng. Emeka Ezeh, who had been appointed acting Director General, Bureau of Public Procurement (BPP) to oversee the activities of the new institution pending inauguration of the National Council, wrote to then Chief of Staff to the President, General Abdullahi Mohammed, on the need to expedite action on the issue.
Following this letter, then Secretary to the Government of the Federation, Ambassador Baba Gana Kingibe began the process for the Council's inauguration based on Section 1 of the Act which specifies that it be chaired by the Minister of Finance (Dr. Shamsudeen Usman). Government members were to include: Attorney General of the Federation (Chief Mike Aondoakaa); Secretary to the Government of the Federation (Kingibe himself); Head of Civil Service of the Federation (Eng. Ebele Okeke) and Economic Adviser to the President (Mallam Tanimu Yakubu). There were also to be six part-time members that had already been nominated to represent: Nigeria Institute of Purchasing and Supply Management (Mr. Job Oyedijo); Nigeria Bar Association (Mr Olatoye Wahab Okunola); Nigeria Association of Chambers of Commerce and Industry (Mrs Stella Okoli); Nigeria Society of Engineers (Mr. Mustapha Bulama); Media (Mr Samuel Benson Iyoyo) and the civil society (Mr Auwal Ibrahim Musa popularly known as Rafsanjani).
But before the ceremony commenced on September 20, 2007, members were quietly dispersed with assurances that they would be invited back for the inauguration in due course. Five years later, they are still waiting. Now what are the issues? Shortly before the president left his office for the inauguration, his attention was drawn to certain provisions of the Act which had distorted the original intent of the reform and would make its implementation difficult. One, the Federal Executive Council had been stripped of any function with regards to awards of contract. Two, the Act as passed leaves the decÄ±sÄ±on to superintend contracts to PublÄ±c and CÄ±vÄ±l Servants who make up the two (Parastatals and Ministerial) Tenders Boards. Three, the Council (to be chaired by the Finance Minister) would approve the appointment of BPP Director General as well as set guidelines and policies on public procurement. Four, the Act also put an unrealistic threshold of 15 percent advance payment for all contracts, including procurements.
Following the dramatic suspension of the Council's inauguration, a meeting was called by the president to examine the contentious provisions in the Act which was reviewed by the State House Counsel, Mr. Jalal Arabi. It was basically the inputs from his office which later became "a Bill for an Act to amend the Public Procurement Act 2007". Aside reinstating the original clause which gives the Federal Executive Council power to deliberate over contracts exceeding a certain threshold, Section 2 of the new Bill reads: "Section 1 of the principal Act is amended by substituting for subsection (2) thereof a new subsection as follows- The Council shall consist of a chairman who shall be appointed by the president..."
The rationale for this decision was that the finance minister who also oversees a procurement ministry could interfere with the activities of the bureau and therefore compromise its independence if such a person were to chair the Council. It was also agreed that the mobilization threshold of 15 percent be removed from the Act in favour of a more flexible threshold that would take into account the nature of the transaction and the information in the bid documents.
To give practical effect to these reservations, the late Yar'Adua met with both Senate President Mark and then House of Representatives Speaker, Mr Dimeji Bankole who agreed to amend the Act and they were true to their words even though that came with another lacuna. The amendment as recommended by President Yar'Adua was indeed effected but the lawmakers excluded the National Assembly and Judiciary from the public procurement process! The late Yar'Adua of course bluntly said he would not sign the law as passed. After another round of meeting, both Mark and Bankole promised to effect the necessary correction but nothing was done until Yar'Adua became sick and eventually died.
While it is difficult to fault the Senate position on the appointment of DG for BPP vis-a-vis the subsisting law, I am also aware that many people in government would be happy indeed if they could get rid of the 'obstacle' that Eng. Ezeh has become. The fact simply is that there is scant regards for due process within our system today and that is why corruption thrives but we cannot continue like this.
The conviction in the United States of Halliburton's Albert Stanley for bribing yet-unnamed Nigerian public officials to secure the NLNG contracts in the Halliburton scandal indeed makes it imperative that we deal with the emblem of shame that contracts have become in our country. The Senate resolution has, however, thrown up some interesting issues. As a response to the fuel subsidy removal crisis, President Jonathan recently constituted a committee of respected Nigerians headed by Dr Christopher Kolade with Major General Mamman Kontagora as his deputy. Some of the responsibilities of this extra-constitutional body include approving the annual work plans and cash budgets of the various Project Implementation Units (PIUs) within the Ministries, Departments and Agencies (MDAs); ensuring orderly disbursement of funds; monitoring and evaluating execution of the funded projects, etc.
When critically examined, the Kolade committee has been given a role greater than that envisaged by the Procurement Council on issues that also border on public procurement. Now that the Procurement Act is in contention, why can't the president propose an amendment that will transform the Kolade committee (which many actually consider redundant) into the Procurement Council? Since the National Assembly reservation on BPP is also based on a reluctance to subordinate their contracts to executive authority, why can't the membership of the Procurement Council be subjected to Senate confirmation? If we have such a Council with people of integrity, it will add credibility to the procurement process while relieving the Federal Executive Council of its current transactional activities so it could concentrate purely on policy formulation and implementation.
The president can even go further. The tenure of the Prof Assisi Asobie-led governing board of the Nigeria Extractive Industry Transparency Initiative (NEITI) just recently lapsed. Now that he is about reconstituting the NEITI board, why can't he appoint Nuhu Ribadu its chairman? The agency has a strong law that covers wider mandate than that given Ribadu's Petroleum Revenue Task Force and is recognised internationally. NEITI also has institutional memory; a network of credible expertise to draw upon and the mandate of the board is for four years, not 60 days!
On a final note, while I do not subscribe to the patently ill-motivated call that tend to disparage the commendable work that Eng Ezeh has been doing at BPP because of a problem that is not of his own making, I also see a window of opportunity if only all the relevant stakeholders can sit down to think out of the box. If we can get our public procurement process right, while ensuring a measure of accountability and transparency in the petroleum sector, then we would be on our way to reducing corruption in our country.
The Tragedy of Odidigboigbo
I have in the past two weeks been subjected to several questions on the administration of the late President Umaru Musa Yar'Adua by critical stakeholders in Abuja and Lagos. Within a spate of 10 days, I was a guest at three important sessions where my book, "Power, Politics & Death" was the central theme. It all began in Abuja when the "Infusionists" led by Mrs Lola Soyinka (nee Shoneyin) invited me as guest at their February event which was attended by several professionals and diplomats. At the session, one young man accused me of being one of the people who "killed Yar'Adua" because nowhere in my book did I mention where I advised the late president to resign to go and take care of his health. "In another country, you, Turai (Mrs Yar'Adua) and other aides will be in jail by now for involuntary manslaughter like Michael Jackson's doctor," he said. I accepted his accusation in good faith.
Last Sunday evening at The Lifehouse in Lagos where notable writers, journalists (including the Nigerian correspondents of global media houses) and artists were gathered, the atmosphere was more convivial as Mr. Tolu Ogunlesi led participants to engage me on the book. And on Monday, I was at Laterna Bookshop in Victoria Island where Pastor Remi Morgan treated me like a celebrity at a book signing ceremony. In all, I have been humbled by all the interest in the book on which five different groups now vie for the film rights. But not unexpectedly, one question that keeps coming up is what my late boss would feel if he were alive to witness the London court drama of Chief James Ibori, pleading guilty to some of the charges on which he had been declared innocent in Nigeria after a dubious trial under his (Yar'Adua's) watch. It is one question which I could not satisfactorily answer and I admitted as much in my book where the Ibori saga takes a whole (and long) chapter.
Last week, I learnt from Dr Eddie Iroh that when you are in a glass house, self-preservation entails more than not throwing stones, "you also must not walk naked". But some members of our political elite believe they could easily graduate from immunity to impunity without consequences. While I feel personally sorry for the tragedy Ibori (usually hailed by friends and hangers-on as Odidigboigbo of Africa) has unwittingly brought upon himself and his family, his travails should be a lesson for those who do not believe in the law of retribution. As for those who still seek my perspective on the sordid drama vis-a-vis the Yar'Adua administration, I leave them with this excerpts from my book:
... the president was viewed negatively because of his relationship with Ibori, whose activities created the impression that he was above the law. We may never know if there was indeed any deal between the duo, but I suspected that the president must have made some commitment to the former Delta State governor that he would protect him. I recall the day Ibori came to my office to warn me, he said something very instructive: “Look, Segun, there is nowhere in the world where you help somebody to power and his reward for you is that you go to jail. It doesn’t happen anywhere, and it won’t begin with me.”
Given that Obasanjo practically made Yar’Adua president of Nigeria—from foisting him on the party to running the campaign almost all by himself—I still cannot put my finger on exactly what role Ibori played in Yar’Adua’s ascension to power, but he must have done something for him to have enjoyed the access he had. Nevertheless, given the albatross that the former Delta State governor had become to the administration’s image, some other leader would have been a little bit ruthless in handling whatever deal might have been struck, even if it meant his friend had to pay some price for his infraction. After all, the president still had the power of prerogative of mercy which could have been invoked—but only after justice had been served in the court of law...
Segun Adeniyi Writes!